To leak or not to leak

Sen. Diane Feinstein (D-Calif.), called by some a “liberal lioness,” has defended the NSA surveillance program, calling Snowden’s acts “treason” for endangering America’s safety. NSA email surveillance helped catch Najibullah Zazu before he bombed the New York City subway, she reminds.

Or was Snowden’s action a simple breach of his contract to treat his work confidentially, not as the government claims, treason? Was there a way Snowden could have raised his concerns within his organization before unilaterally pulling the switch that unleashed a cascade of documents? Some have compared Snowden to Daniel Ellsberg, who released the Pentagon Papers and was widely vilified, but whose acts eventually were condoned by the Supreme Court. Ellsberg had tried to call attention to the report through proper channels before releasing it to The New York Times and turning himself in.

Snowden’s act also has been compared to a working journalist’s use of a leak, a practice which is common and rarely criminalized? But was his deluge so different in volume that it became different in kind? And isn’t it ironic that Snowden is being protected by several countries with records of secrecy and harassment of journalists to which he has sought asylum? Currently, he has requested asylum in 21 countries, it has been reported.

Snowden has embarrassed his country (itself not a crime), but is accused of deeply prejudicing it (and thus committing very serious crimes). There has been some positive fallout. Twenty-six senators have complained about the government’s practices after seeing the information Snowden released.

And one of the FISA judges has publicly defended her role in adjudicating government requests for secret taps and email scrutiny, describing for all to consider the guarded processes involved. But the vastness of Snowden’s disclosures deters the public from deciding whether his actions ought to be condemned or praised. But surely the public can consider the wisdom and necessity of the government (NSA) contracting with private companies (Booz Allen Hamilton) to do its sensitive work.

Not discussed in the barrage of media coverage of Snowden’s massive leaks of government documents he had access to in his work for a government contractor is the question whether the documents he leaked should have been classified in the first place.

Many enlightened experts and prestigious government commissions have concluded that much (as much as 90 percent, some argue) information that is classified should not be in the first place. Psychology professors at the University of Colorado concluded in a recent study that “people tend to inflate the value of ‘secret’ information simply because it is secret.” They refer to the phenomenon as “secrecy heuristic.” And, by exaggerating the value of secret information, they “cede privacy in the interest of national security,” according to their study.

In my book In Confidence, When To Protect Secrecy and When to Require Disclosure, I described the work of five Blue Ribbon investigations of our classification system criticizing the proliferation of classified documents by government officials. That historic trend has created “a government of secrets,” with classifications determined by thousands of mid-level officials holding a stamp marked secret, an expensive, veritable “secrecy machine" that is costly in coin and social values.

Millions of documents are classified yearly, and the process of declassification is cumbersome, expensive, and unsure, mostly immune from sunshine and freedom of information laws designed to curb such excesses.

Nonetheless, it’s a stretch to call Snowden’s act civil disobedience. In those situations, people stand up for their actions and use their defense to make their points at personal risk. Unlike the civil rights warriors in the 1960s, or Vietnam protestors, Snowden fled and is seeking asylum. His father naively called the Justice Department reportedly attempting to persuade authorities to allow his son to choose his venue and be assured he’s released on bail. That's not likely to happen.

Snowden is likely to pay for his actions, as most whistle-blowers and avowed patriots do. How he did what he did may prove more damning than what he sought to accomplish. As columnist David Ignatius noted in The Washington Post recently, even those who trust the government are worried about “malcontents and self-appointed do-gooders who may get security clearance.”

One good and positive outcome of the Snowden incident would be a sober and authoritative reform of classification laws and not leaving that important reform either to irresponsible outlaws or virtuous whistle-blowers.